Harris Defeat Underscores Political Impasse over Supreme Court

Democrats reject second Christie nominee in high-stakes battle for control of top court

Credit: Tony Kurdzuk/Star-Ledger

Republican Gov. Chris Christie and Senate Democratic leaders are locked in a constitutional battle over the political balance and future independence of the New Jersey Supreme Court -- one that threatens to leave the once-proud high court two justices short all the way through next year’s gubernatorial election.

Yesterday’s Senate Judiciary Committee rejection of Bruce Harris, the Chatham Borough mayor who was the first gay and third African-American nominated to New Jersey’s highest court, was not really about Harris’ lack of courtroom experience. Nor was it based on his decision to recuse himself from any case involving the same-sex marriage laws he has previously endorsed -- certainly not any more than the previous rejection of Christie nominee Philip Kwon had to do with his mother’s failure to pay taxes on time.

The real issue, as both Christie and Senate Judiciary Committee Chairman Nicholas Scutari (D-Union) made clear following the committee’s 7-6 vote, is control of the New Jersey Supreme Court. This is the same court whose Abbott decisions requiring massive state aid to inner city schools and Mount Laurel rulings requiring low-income housing in the suburbs have been anathema to Christie and Republican leaders.

Christie and Scutari agree on the unwritten tradition in place since the 1947 New Jersey Constitution that no more than four out of the seven members of the state Supreme Court can be members of one party. What they disagree over is whether Supreme Court Associate Justice Jaynee LaVecchia should count as a Republican.

The Making of a Republican

“Jaynee LaVecchia never registered as a Republican. Just because she worked for two Republican governors doesn’t make her a Republican,” Christie said of LaVecchia, who served as deputy chief counsel for Republican Gov. Tom Kean and as director of the Division of Law and banking commissioner under GOP Gov. Christine Todd Whitman, but has never declared a party affiliation.

“LaVecchia is a Republican who worked in Republican administrations and had Republican campaign contributions in the past,” Scutari countered, referring to LaVecchia’s $500 contribution to state Senator Leonard Lance’s reelection campaign in 1999, the year before her Supreme Court nomination. “Just because you haven’t registered as a Republican doesn’t mean you’re not a Republican.”

It’s a question of arithmetic. If LaVecchia counts as an independent, then Christie would be entitled to appoint two Republicans to the existing Supreme Court vacancies to join Associate Justices Helen Hoens and Anne Patterson. If LaVecchia is considered a Republican, then Christie would be entitled to appoint only one more Republican, and the remaining spot would have to go to a Democrat or an independent. Chief Justice Stuart Rabner and Associate Justice Barry Albin are both Democrats.

“Christie can have four: we just don’t want him to have five -- a supermajority,” Scutari said, asserting that one of Christie’s two appointees should be a Democrat.

“If they’re waiting for me to appoint a Democrat to the Supreme Court because of their convoluted logic, their false logic, on Jaynee LaVecchia, they’ll be waiting a long time,” Christie said. “If they want a Democrat on the court, they’d better win the next election.”

Christie stated that he would not allow himself to be the first governor since the 1947 Constitution not to have four justices of his own party on the court, especially not after several decades in which “they’ve had their policy objectives protected by a Democratic majority on the Supreme Court.”

Left unsaid by both sides is that whether LaVecchia is really an independent or a Republican, she is certainly not a “Christie Republican.” For Christie, a reliably conservative Republican majority would consist of Hoens, who is married to one of his policy aides and is up for reappointment later this year, plus Patterson and two more of his own appointees – a majority that Kwon and Harris presumably would have provided.

For Christie, LaVecchia doesn’t count.

Casting a Key Vote

It was LaVecchia who cast the deciding vote a year ago in a 3-2 ruling by a diminished court to require the Christie administration to restore $500 million in state aid cut from the 31 predominantly urban school districts covered by the original Abbott ruling. Christie denounced the decision -- and implicitly LaVecchia -- as just the latest example of an overreaching activist court sending out “invoices” for the governor and Legislature to pay.

However, constitutional scholars praised the decision as a courageous compromise that preserved the integrity of a court that had been snarled in politics after Christie broke with past practice by refusing to reappoint Associate Justice John Wallace, a Democrat with a solid judicial record, and Senate President Stephen Sweeney (D-Gloucester) retaliated by refusing to consider Christie’s nomination of Patterson until after Wallace’s term would have expired in 2011.

Because of the Wallace vacancy and the decisions of two justices to recuse themselves, LaVecchia was joined in her majority opinion only by Democrat Albin and by Edwin Stern, an Appellate Division judge elevated temporarily to the high court to hear the Abbott case.
Stern’s elevation could be the rule if the impasse between Christie and the Senate Democratic leadership over Supreme Court appointments continues, as both sides seemed to envision would be the case yesterday.

“Christie today went from being the first Republican governor in New Jersey history to lose a Supreme Court nominee to the first governor to lose two,” Monmouth University political scientist Patrick Murray said yesterday. “Legislative Democrats didn’t appreciate [Christie’s] attacks on their institution, and they’ve now decided to take a stand.”

Clearly, Democrats would prefer to have appellate judges like Stern fill in when needed on the high court than to approve two Christie Republican appointees whose judicial independence they questioned.

Christie's Criticism

Christie sharply criticized the seven Democratic senators who voted against the Harris nomination. “Today for the second time in a row we saw a highly qualified nominee sacrificed in the name of partisan politics,” Christie said. “This time was just a different excuse to achieve the desired end. In the end, it didn’t matter how qualified, how intelligent, how reasoned or how experienced Bruce Harris or Phil Kwon actually are.”

The governor said his office already had started reviewing candidates to replace Kwon and would now look for two candidates, but he added that he knew that even if he came in with a judge with an impeccable record who happened to be a Republican, Democrats would find a reason to reject him.

“They never thought I would come in with two diverse candidates who happen to be Republicans,” Christie said of his nomination of the first openly gay and first Asian-American nominees to the Supreme Court, both of whom were rejected by identical 7-6 votes.

Yesterday, as he did on the Kwon nomination, Senator Brian Stack (D-Hudson), the Union City mayor who has been a staunch Christie ally on most issues, voted with the five Republican members of the Senate Judiciary Committee to confirm Harris. Before the hearing, Republicans replaced Senator Michael Doherty (R-Warren), the most prominent conservative voice in the legislature, with Senator Jennifer Beck (R-Monmouth), who could be counted on to vote for Harris. The fact that Democrats did not object to the replacement indicated that they already knew they had the votes to reject the Harris nomination. Senator Joseph Kyrillos (R-Monmouth), a Christie ally who is running against U.S. Senator Robert Menendez (D-NJ), voted for Harris despite criticisms from the Republican Right.

Doherty’s replacement on the panel reflected the unpopularity of Christie’s nomination with New Jersey’s social conservatives, including Steve Lonegan, a frequent Christie critic who heads Americans for Prosperity, Carolee Adams of the Eagle Forum, and John Tomicki of the League of American Families. All three objected to Harris’s 2009 telegram advocating passage of the same-sex marriage bill being considered by the Democratic-controlled Legislature in the last days of Democratic Gov. Jon Corzine’s administration, particularly his assertion that the New Jersey Supreme Court had determined that his 30-year relationship with partner Marc Boisclair “is entitled to the equal protection guarantees of the State Constitution.”

Same Sex: Republican vs. Democrat

In a telegram to GOP legislators in Morris County, Harris, then a Chatham Borough councilman, noted that he had worked hard to get Republicans elected, and said “it disturbs me that same-sex marriage has become a Republican vs. Democrat issue.” Harris wrote:

“When I hear someone say that they believe marriage is only between a man and a woman because that’s the way it’s always been, I think of the many ‘traditions’ that deprived people of their civil rights for centuries: prohibitions on interracial marriage, slavery, (which is even provided for in the Bible), segregation, the subservience of women, to name just a few of these ‘traditions.’ I hope that you consider my request that you re-evaluate your position . . . And, if the basis of your opposition is religious, then I suggest that you do what the U.S. Constitution mandates -- and that is to maintain a separation between the state and religion.”

Harris’ open support for same-sex marriage should have won him support from the bill’s prime sponsors, Senator Loretta Weinberg (D-Bergen) and Raymond Lesniak (D-Union), but his decision to recuse himself from any cases involving same-sex marriage cost him their votes by calling into question his independence from Christie.

Harris said he decided entirely on his own to recuse himself from considering any court cases that pertained to same-sex marriage, because he feared that a majority of the public would doubt his ability to be impartial on the issue, thereby undermining public confidence in the impartiality of the New Jersey Supreme Court itself. He said he did not discuss the decision in advance with the governor’s office, and that his decision was “personal” and “not driven by political calculus.”

But Harris’s decision was announced not by Harris, but by the Governor’s Office, after news of the telegram leaked out, and it was state Republican chairman Jay Webber who circulated the text of the telegram in an effort to combat conservative opposition, Lesniak noted.

No Supreme Executive

Social conservative activist “John Tomicki said we want a Supreme Court, not a Supreme Legislature. I agree with that. But we also do not want a Supreme Executive,” Lesniak said, suggesting that the recusal decision was driven by politics. “I am not convinced that Mr. Harris will be an independent fighter on the Supreme Court.”

Scutari and Lesniak said the politicization of Harris’ decision to recuse himself on the issue of same-sex marriage, which Christie has very publicly opposed, was particularly troubling because of what they view as Christie’s public attacks on the integrity of the Supreme Court.
Lesniak said Christie’s decision to break with precedent by deciding not to renominate Wallace “brought into question the issue of the independence of the judiciary.” Republican Gov. Kean had cemented that tradition in 1986 when he renominated Chief Justice Robert Wilentz in order to preserve the independence of the judiciary despite his deep disagreement with Wilentz’s liberal philosophy as exemplified by his Abbott and Mount Laurel rulings.

“The independence of the court is under attack today as never before, which is what makes this recusal so troubling,” Scutari said.

Senator Nia Gill (D-Essex), an African-American lawyer who is embroiled in a tough primary fight for the congressional nomination to replace the late Rep. Donald Payne (D-N.J.), led the questioning of Harris on his recusal on same-sex marriage.

She asked pointedly whether Thurgood Marshall, the noted civil rights lawyer, should have recused himself from every civil rights case when he was the first African-American named to the U.S. Supreme Court. Following Harris’ logic, she said, any woman nominated to the state Supreme Court would have to recuse herself from any case involving abortion issues.

While Republicans pointed to Harris’ graduation from Amherst College, from Boston University with a master’s degree in business administration, and from Yale University Law School, his service as a councilman and mayor in Chatham Borough, and the 24-1 vote recommending his confirmation by the New Jersey Bar Association, Democrats focused on his failure to be named a partner at the two law firms for which he worked, his lack of writing in legal publications, and his lack of courtroom experience.

The latter argument angered Christie, who noted that litigation experience has never been a prerequisite for appointment to the Supreme Court, and Beck, who argued that Harris would be a refreshing change from the parade of Trenton insiders, particularly former governor’s counsels, attorney-generals and cabinet officers, who have made up the bulk of Supreme Court nominees in recent years.

Christie was particularly incensed by what he viewed as attacks on Harris’ and his own integrity. “I didn’t ask him a single question about any issue that might come before the Supreme Court,” said Christie. “I’ve been a lawyer in this state for 25 years, and I know not to ask.”

“This was a political assassination,” Christie concluded. “They wanted to wipe this guy out and they did.”